Opinion issued April 3, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-00927-CR

———————————

OSCAR MONTANO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Case No. 1330964

O P I N I O N

Without a sentencing recommendation from the State, appellant Oscar 

Montano pleaded guilty to the felony offense of burglary of a habitation with intent 

to commit theft. See TEX. PENAL CODE ANN. § 30.02 (West 2011). The trial court 
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sentenced the appellant to 18 years in prison and imposed court costs. Presenting 

one issue on appeal, Montano contends that there is insufficient evidence to 

support the award of court costs ordered by the trial court. We modify the 

judgment of the trial court to reflect those costs supported by the record, and as so 

modified, we affirm.

Background

Montano was indicted for burglary of a habitation with the intent to commit 

theft. Without a recommendation as to punishment, he pleaded guilty to the 

charged offense and pleaded true to the enhancement allegation that he had 

previously been convicted of the felony offense of burglary of a habitation. The 

trial court sentenced him to confinement for 18 years. Furthermore, Montano was 

ordered to pay $244 in court costs as part of the judgment. 

Montano appealed, and he requested that the clerk’s record on appeal 

include, among other things, a “bill of costs reflecting all fees and costs assigned to 

[him] post-conviction.” A bill of costs was subsequently prepared by the clerk and 

included in the record. The total reflected in the bill of costs was $234.

Analysis

Montano challenges the sufficiency of the evidence to support the award of 

costs. In the trial court, he did not object to the amount of costs, but he did not need 

to do so to preserve his right to challenge them on appeal. See Johnson v. State, 
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No. PD-0193-13, 2014 WL 714736, at *2–3 (Tex. Crim. App. Feb. 26, 2014). 

Montano does argue that the postjudgment preparation of a bill of costs violated

his due process rights, and that the document therefore should not be considered. 

He thus contends that he should not have to pay any court costs, because there 

would be insufficient evidence to support the assessment without this bill. 

However, we review the sufficiency of the evidence to support the award of costs 

to determine if there was a basis for the costs, not to determine if there was 

sufficient evidence offered at trial to prove each cost. See id. at *2.

I. Due process

Montano asserts the production of a bill of costs after the entry of judgment 

violates his due process rights and should not be considered by this court.

Furthermore, Montano claims he received no notice and did not have an 

opportunity to be heard regarding the amount of court costs, because he did not 

receive a bill of costs before the judgment of the case. These arguments were 

recently considered and rejected by the Court of Criminal Appeals. “Convicted 

defendants have constructive notice of mandatory court costs set by statute and the 

opportunity to object to the assessment of court costs against them for the first time 

on appeal or in a proceeding under Article 103.008 of the Texas Code of Criminal 

Procedure.” Cardenas v. State, No. PD-0733-13, 2014 WL 714734, at *2 (Tex. 

Crim. App. Feb. 26, 2014); see also Johnson, 2014 WL 714736, at *7 (holding that 
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a bill of costs is not required to support any particular amount of court costs). 

Montano’s right to due process of law therefore has been satisfied with respect to 

notice and an opportunity to be heard regarding the imposition of court costs.

Cardenas, 2014 WL 714734, at *2.

II. Constitutional objections to specific costs

Montano also argues that the postjudgment supplementation of the record 

with a bill of costs wrongfully precluded him from making constitutional 

objections to the “consolidated court costs” on appeal. See Karenev v. State, 281 

S.W.3d 428, 434 (Tex. Crim. App. 2009) (“a defendant may not raise for the first 

time on appeal a facial challenge to the constitutionality of a statute”). He claims 

this was a separate violation of due process, but this argument was also rejected by 

the Court of Criminal Appeals in Johnson: “an appellant is not prejudiced by the 

supplementation of the record under these circumstances because he or she need 

not object at trial to contest the imposition of court costs on direct appeal, and an 

appellant has a separate statutory remedy to correct erroneous or unsupportable 

costs.” Johnson, 2014 WL 714736, at *4 (citing TEX. CODE CRIM. PROC. ANN. art. 

103.008(a)). Accordingly we overrule this issue.

III. Sufficiency of evidence to support costs

Finally we review the award of costs by reviewing the facts in the record to 

determine whether they provide a basis for the assessed court costs. See id. at *2.
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In response to Montano’s request, the district clerk filed a document that was 

generated by the Harris County Clerk’s Justice Information Management System. 

This document was printed out and certified by the district clerk of Harris County. 

The document, entitled “Cost Bill,” itemized the various costs of Montano’s case.

The costs are listed on two pages. The first page lists costs and a subtotal of 

$60 of costs, including:

$40 “clerks fee” 1

$15 “sheriffs fee” 2

+ $5 “security fee” 3

$60 “subtotal”

The first page also lists the following costs which are component parts of the $15 

“sheriffs fee”:

$5 “commitment” 4

$5 “release” 5

 1 See TEX. CODE CRIM. PROC. ANN. art. 102.005(a) (West 2007) (“A defendant 

convicted of an offense in a county court, a county court at law, or a district 

court shall pay for the services of the clerk of the court a fee of $40.”). The 

record reflects that a conviction issued in the case on September 25, 2011. 

2 See generally id. art. 102.011 (West Supp. 2013) (fees for services of peace 

officers).

3 See id. art. 102.017(a) (“A defendant convicted of a felony offense in a 

district court shall pay a $5 security fee as a cost of court.”). The record 

reflects that a conviction issued in the case on September 25, 2011. 

4 See id. art. 102.011(a)(6) (“A defendant convicted of a felony or a 

misdemeanor shall pay the following fees for service performed in the case 

by a peace officer . . . $5 for commitment or release . . . .”). The record 

reflects that a felony commitment was issued on September 25, 2012.
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+ $5 “arrest w/o 

warrant/capias” 6

$15 “sheriffs fee”

The second page carries forward the $60 subtotal from the first page and 

lists the following additional costs, culminating in $234 as the “total amount 

owed”:

$60 “page 1 subtotal”

$4 “court technology fund”7

$4 “jury reimbursement fee”8

$ 25 “DC record preservation”9

 5 See id. art. 102.011(a)(6) (“A defendant convicted of a felony or a 

misdemeanor shall pay the following fees for service performed in the case 

by a peace officer . . . $5 for commitment or release . . . .”). The record 

reflects that a conviction was issued in the case on September 25, 2011.

6 See id. art. 102.011(a)(1) (“A defendant convicted of a felony or a 

misdemeanor shall pay the following fees for services performed in the case 

by a peace officer . . . $5 . . . for making an arrest without a warrant . . . .”). 

The record reflects that an arrest was made on December 12, 2011, and there 

is no record of a warrant being issued. 

7 See id. art. 102.0169(a) (“A defendant convicted of a criminal offense in a . . 

. district court shall pay a $4 county and district court technology fee as a 

cost of court.”). The record reflects that a conviction was issued in the case 

on September 25, 2011.

8 See id. art. 102.0045(a) (“A person convicted of any offense, other than an 

offense relating to a pedestrian or parking of a motor vehicle, shall pay as a 

court cost, in addition to all other costs, a fee of $4 to be used to reimburse 

counties for the cost of juror services as provided by Section 61.0015, 

Government Code.”). The record reflects that a conviction was issued in the 

case on September 25, 2011.
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$ 2 “support of indg defense”10

 $ 133 “consolidated court costs”11

+ $ 6 “support judiciary fees”12

$ 234 “total amount owed”

This bill of costs demonstrates the basis for an award of fees and costs totaling 

$234. An additional sum of $10 was incorporated into the judgment for a reason 

unexplained in the bill of costs or the state’s appellate brief. 

 9 See id. art. 102.005(f) (“A defendant convicted of an offense in a . . . district 

court shall pay a fee of $25 for records management and preservation 

services performed by the county as required by Chapter 203, Local 

Government Code.”). The record reflects that a conviction was issued in the 

case on September 25, 2011.

10 See TEX LOC. GOV’T CODE ANN. § 133.107(a) (West Supp. 2013) (“A person 

convicted of any offense, other than an offense relating to a pedestrian or the 

parking of a motor vehicle, shall pay as a court cost, in addition to other 

costs, a fee of $2 to be used to fund indigent defense representation through 

the fair defense account established under Section 79.031, Government 

Code.”). The record reflects that a conviction was issued in the case on 

September 25, 2011.

11 See id. § 133.102(a)(1) (entitled “Consolidation Fees on Conviction,” and 

providing: “A person convicted of an offense shall pay as a court cost, in 

addition to all other costs . . . $133 on conviction of a felony . . .”); see also

TEX. GOV’T CODE ANN. § 102.021(1) (West Supp. 2013). The record reflects 

that a conviction was issued in the case on September 25, 2011.

12 See TEX LOC. GOV’T CODE ANN. §133.105(a) (West 2008) (“A person 

convicted of any offense, other than an offense relating to a pedestrian or the 

parking of a motor vehicle shall pay as a court cost, in addition to all other 

costs, a fee of $6 to be used for court-related purposes for the support of the 

judiciary.”). The record reflects that a conviction was issued in the case on 

September 25, 2011.
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Without any further guidance as to what authority may have justified the 

remaining $10 in assessed costs, we conclude that the trial court’s award of court 

costs does not accurately comport with the record in that it does not reflect the total 

from the “cost bill.” “An appellate court has the power to correct and reform a trial 

judgment to make the record speak the truth when it has the necessary data and 

information to do so.” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston 

[1st Dist.] 2001, no pet.); see also TEX. R. APP. P. 43.2(b). The record supports 

modification of the judgment because the record supports court fees totaling to 

$234, and the State has suggested no basis upon which any greater amount would 

be justified. Accordingly, the trial court’s judgment is modified to reflect that the 

court fees to be awarded match the “cost bill” in the record of $234.
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Conclusion

We modify the trial court’s award of costs to $234 to reflect the 

supplemented record. As so modified, the judgment of the trial court is affirmed. 

See TEX. R. APP. P. 43.2(b).

Michael Massengale

Justice 

Panel consists of Chief Justice Radack and Justices Sharp and Massengale.

Publish. TEX. R. APP. P. 47.2(b).